©2023. Published in Landslide, Vol. 16, No. 1, September/October 2023, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
The world is experiencing a “decolonization” movement, as former colonies and Indigenous Peoples seek to regain cultural identities and political power that was stripped in the colonial period. This endeavor has particular resonance for Indigenous Peoples, who, as the New York Times recently reported, are increasingly calling on courts and international bodies to assist them in “reversingOften framed in the language of human rights, many of these efforts center on Indigenous Peoples’ desire for protection of their cultural property, referred to as property’s “fourth estate.” Cultural property is broadly defined and is generally understood to be capacious enough to include properties that are tangible (e.g., funerary objects), intangible (e.g., designs), and real (e.g., sacred sites), and which are essential for the collective identity and survival of a
The Problem of Cultural Appropriation
In recent years, much of the Indigenous advocacy around cultural property protection has been in reaction to the harms caused by culturalIn the U.S., after years of lawsuits and protests by Indigenous activists, there has been somewhat of a sea change in popular opinion and in corporate practice on this matter. For example, corporations that for years staunchly asserted their rights to capitalize on Native culture eventually changed course, rejecting stereotypical tropes, caricatures, and iconography that denigrates Native people. The Washington R*skins, Chief Wahoo of the Cleveland Indians, and the Land O’Lakes butter maiden are three recent examples. Lawyers have taken their turn at combating some of these harms as well. For example, the Navajo Nation filed a lawsuit against Urban Outfitters for unlawfully creating and marketing “Navajo panties”; the Quileute Tribe sued Nordstrom for selling “Quileute Chokers”; and the descendants of Tasunke Witko took legal action to end production of “Crazy Horse Malt Liquor.”
Tribal Law Innovations in Protecting Indigenous Peoples’ Cultural Property
The inadequacy of American law in protecting Indigenous Peoples’ cultural property is well-documented. In fact, U.S. law not only has failed to secure tribal rights to sacred sites, ceremonial grounds, environmental integrity, Indigenous languages, and tribal cultures but has actually been deployed as a vicious tool in the destruction of Native culture. Using the legal doctrines present at the time, colonizers on Turtle Island dispossessed Indians of their lands, criminalized Native religions, removed Indian children to boarding schools, exhumed and hoarded Native ancestors for research, suppressed Indigenous languages, and opened sacred sites to mining and tourism. In each case, various legal doctrines—congressional plenary authority, the doctrine of discovery, and the denial of First Amendment protection for sacred sites, to name only a few—were employed to destroy Indigenous culture as a mechanism to wipe out Indigenous Peoples themselves. Where actual genocide was undesirable or impossible, cultural genocide provided a facile and widely accepted stand-in to “kill the Indian, save the man.” Thus, it is perhaps unsurprising that tribes have largely shifted focus away from U.S. law as a panacea for the protection of Indigenous cultural property.
As an academic, I have been writing about Indigenous Peoples’ rights to cultural property for almost two decades. My research has examined legal protections (or lack thereof) at all levels of government: international, national, and tribal. More than 15 years ago, I decided to turn my attention to tribal law to see what efforts tribes had taken to protect their cultural property. In doing so, in 2005 I conducted a comprehensive study to determine what programs and laws, if any, Indian tribes in the U.S. had in place to protect tribal cultural
While I found that tribes were actively engaged in the protection of their cultural property, the positive law at the time was embryonic, with relatively few examples to draw from, particularly with regard to intangible property. Since the results of that study were published 15 years ago, however, the world changed in dramatic ways. With regard to Indigenous rights, in particular, the decolonization movement began to pick up steam, as advocates across the world determinedly reiterated that the systems and structures of colonialism—particularly as they relate to culture and cultural property—must be undone. An iconic example is the long struggle of the Pueblo of Acoma, which fought for years to ensure the repatriation of their ceremonial shields back to theAnother seismic shift in Indigenous rights was the U.N. General Assembly’s adoption of the U.N. Declaration on the Rights of Indigenous Peoples in 2007, with the U.S. offering its support in 2010. The declaration is a capacious document, with numerous articles that articulate protections for Indigenous Peoples’ cultural property and cultural survival.
During this time of significant change in the international Indigenous rights movement, tribal law was developing in parallel. Thus, in 2020, I embarked on a journey to recreate and expand on my earlier study. My goal was straightforward: to research tribal law to see what Indian tribes and Alaskan Native Villages in the U.S. were doing to protect their cultural property and to compare those findings to the previous data set. I also had a particular curiosity about whether tribal efforts to protect intangible property had increased and how. This inquiry was of special interest, in part, because of the U.N. World Intellectual Property Organization’s focus on developing instruments to safeguard Indigenous Peoples’ intangible property, a project with which I amI also wanted to ascertain whether new terms pertaining to various intellectual property aspects of cultural property, like “data sovereignty,” would appear in updated tribal
The methodology used was straightforward and, in many ways, mirrored my 2005 efforts. I studied tribes’ official websites, libraries, and online legal repositories to document tribal cultural preservation programs and tribal laws. Using a broad array of search terms, I created a database of laws, which I then categorized. Category (1), cultural preservation laws, functioned as a combined category. The subcategories included: (2) burial sites, funerary objects, and repatriation; (3) sacred sites and ceremonial locations; (4) intangible property; and (5) data sovereignty. I also documented places in tribal codes that explicitly referenced the five federal laws relevant to the project: the Native American Graves Protection and Repatriation Act (NAGPRA), the Indian Arts and Crafts Act (IACA), federal trademark law (Lanham Act), federal copyright law (Copyright Act), and federal patent law.
The results were striking, evincing an exponential increase in tribal cultural property programs and laws across each category over the intervening 15 years. The growth is seen both in the expansion of tribal cultural preservation programs and in the swift development of tribal cultural property laws. To understand these results, consider the comparative data. In 2005, 193 tribes out of 351 (Alaskan Native Villages were excluded from the 2005 study) had tribal websites. But, by 2020, that number had grown to 317 tribes in the lower 48 and expanded to 362 when Alaskan Native Villages were included. Sixty-two tribes had cultural preservation programs that were discoverable through my research methods in 2005, compared to 187 in 2020. When the Alaskan Native Villages were added in, that number rose to 201.
The most salient finding, however, was in regard to the development of tribal cultural property laws generally and of intangible property protections specifically. In 2005, my research revealed that only 27 tribes had enacted cultural property laws. That number ballooned to 134 by 2020. And a more granular view of the data reveals further insights. The 2005 study did not uncover a single tribe that had passed laws specifically related to their “intellectual property,” which I define to include all intangible cultural resources, such as ceremonies, medicinal knowledge, traditional practices, designs, stories, songs, and others. By contrast, the 2020 research uncovered 48 tribes with tribal codes governing tribal intangible knowledge. And 10 of those tribes have gone further to include protections for their intellectual property that directly parallel federal statutory law, with citations to copyright law, patent law, trademark law, and/or the IACA. Additionally, there were 49 tribes that had passed laws regarding “data sovereignty,” a striking statistic, especially if one considers that the term was not even in wide use 15 years
Another intriguing finding was seeing the methods by which tribes integrated Indigenous worldviews, lifeways, and values into their tribal codes in ways that I did not observe in 2005. Many of the cultural property laws were innovative, inspired, and, perhaps most importantly, uniquely tailored to meet the needs of the specific tribal community. This manifested in numerous ways. For example, in some ways mirroring the IACA, the Coquille Tribe has codified a Coquille Crafted Ordinance, by which artists may identify their works as “CoquilleThe code explicates what is required for a work to be “Coquille Made” (enrollment in the Coquille Indian Tribe) and defines the portion of labor and materials necessary to qualify for the brand (labor must be entirely Coquille, but the individual component materials of the item need not be entirely Coquille The Pueblo of Acoma has a law that assigns to the tribe all copyrights governing Acoma language publications and media produced by Pueblo schools to allow the tribe to better steward the production of materials that reflect culturally sensitive aspects of Pueblo And the Pascua Yaqui Tribe defines its “Traditional Indigenous Intellectual Property” according to Yaqui custom and tradition:
“Traditional Indigenous Intellectual Property” means the indigenous cultural information, knowledge, uses, and practices unique to the Tribe’s ways of life maintained and established over tribal homelands and aboriginal areas since time immemorial. This knowledge is based upon millennia of observation, habitation, and experience, and is a communal right held by the Tribe and in some instances by
These examples represent merely a snapshot of hundreds of examples of innovative tribal laws that have developed in the cultural property space. Whether a tribe published its tribal code entirely in its Indigenous language (with translations in the footnotes), included its creation story in the preface, or guaranteed heightened protection for religious practices that predate Christianity, it is clear that tribal law provides a unique mechanism for tribes to enact cultural property laws that speak to tribal values and concerns. No exogenous legal system can possibly achieve the same goals.
Of course, my personal and professional experience has taught me that all tribes have internal norms or customs governing tribal cultural property, whether written or not. The absence of any tribe from this 2020 study says nothing about whether a tribe protects its cultural property or how. Tribal custom and tradition, which operates within all tribes, has a valuable role to play in cultural survival. Such laws need not be expressed in written form to have salience and authority within Indigenous communities. With thousands of years of knowledge embedded in a deeply revered oral tradition, there are numerous reasons a tribe may not have a written, codified set of cultural property laws. Such decisions should in no way undermine or devalue a tribe’s own law in the area.
Cultural Sovereignty and Cultural Survival
While respecting each tribe’s choice in this matter, my work has persuaded me that further development of tribal cultural property law is critically important to the exercise of tribal sovereignty and self-determination. The codification of tribal law is in and of itself an act of sovereignty. It embodies what it means to govern, as tribes do the hard work of having the internal conversations that are necessary to reach consensus on the codification of cultural property protection. As such, tribal cultural property law can hold great sway internally, as well as externally. Within tribal communities, these laws represent tribal values and lifeways. They have the ability to reify tribal cultural systems and to demonstrate to tribal members the tribe’s commitment as a sovereign to protect culture and cultural productions. For the outside world, tribal law sends a message about tribal sovereignty, Native governance, and the importance of cultural property to the continued existence of Indigenous Peoples as such.
Monumental changes have taken place in tribal cultural property law in the last 15 years, and my sense is that tribes are just getting started. Motivated by a growing Indigenous rights movement—in the U.S. and around the world—Indian tribes today are increasing their efforts to protect their tribal cultural property through preservation programs, Tribal Historic Preservation Officers, tribal law, and international advocacy and engagement. In this way, tribes are standing firm, as they have for hundreds of years, and pushing back against hegemonic forces that continue to threaten tribal cultural survival and the flourishing of the next seven generations.